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Saturday, October 10, 2015
Motion to Add Municipal Defendant Dismissed
A motion to add a municipality as a defendant was recently dismissed.
In Temporin v. DiVincenzo, 2012 ONSC 5213 (S.C.J.), the plaintiff was injured in a 2007 motor vehicle accident. Although the City of Burlington had been named as a third party, the plaintiff did not move to add it as a defendant until 2012. The plaintiff ordered the police report in 2007, but did not receive officer's notes as counsel had inadvertently neglected to send payment. The notes were ultimately received in 2010 when a follow up request was made. They referred to road conditions consisting of "fierce" black ice. The plaintiff argued that the two year limitation period for adding the municipality began in 2010.
Parayeski J. dismissed the motion. The failure to follow up for police notes until 2010 did not give rise to a discoverability issue. The plaintiff had not exercised reasonable diligence and even though there was no prejudice to the municipality, this did not justify it being added as a defendant post-limitation.
This decision is a good example of the maxim that limitation periods are not enacted to be ignored. The burden is on plaintiffs to act diligently to identify defendants within the appropriate limitation period.
